THAI CRIMINAL LAW OF COPYRIGHT INFRINGEMENTS
The penalties for copyright offences in Thailand are contained in the Copyright Act B.E. 2537 (1994). Section 69 of the Act penalizes a violation of any copyright or the performer’s rights broadly described in Sections 27, 28, 29, 30, and 52: including reproduction (that is downloading music in the meaning of the Internet Treaties), adaptation, and communication to the public (that is uploading music on the Internet). If a guilty person does it without commercial purpose, then he “shall be inflicted with a fine from twenty thousand Baht up to two hundred thousand Baht.” If he does the same with the commercial purpose, “the offender shall be inflicted with imprisonment for a term from six months up to four years or a fine from one hundred thousand Baht up to eight hundred thousand Baht or both imprisonment and fine.”
Section 70 of the Act penalizes (by reference to Section 31) anyone who knows that a work is made by infringing the copyright of another person and tries to distribute it in any form for profit. That includes communication to the public and any distribution “which may cause damage to the owner of copyright”. The offender is “inflicted with a fine from ten thousand Baht up to one hundred thousand Bath.” The scope of this section is unclear since it is followed by the second paragraph which penalizes the same offence if “committed with the commercial purpose” by punishing the offender with imprisonment for a term from three months up to two years or a fine from fifty thousand Baht up to forty hundred thousand Baht or both imprisonment and fine.” It is not clear how the offence of the first paragraph committed in any form for profit is different from the offence of the second paragraph committed for commercial purpose. The latter is commonly defined as seeking profit.12
Both sections 69 and 70 suggest that a copyright infringement without commercial purpose should be prosecuted and penalized without imprisonment by imposing fines. If these provisions are stretched to cover any non-commercial sharing of the materials on the Internet, several consequences become apparent. The government can prosecute potentially any person who downloads a music file from the Internet with the exception of the fair use discussed below. Secondly, the Copyright Act gives extensive powers to the police to search for evidence which can be potentially dangerous for civil liberties and privacy. Section 67 of the Act gives the power to the investigation officers “(1) to enter a building, office, factory or warehouse of any person during sunrise and sunset or during the working hours of such place or to enter a vehicle to search or examine the merchandise when there is a reasonable suspicion that an offence under this Act is committed, (2) to seize or forfeit documents or materials relating to the offence for the benefit of proceeding a litigation when there is a reasonable suspicion that an offence under this Act is committed, (3) to order any person to testify or submit accounting books, documents or other evidences when there is a reasonable suspicion that the testimony, accounting books, documents or such evidences shall be useful for the finding or the use as evidence for proving the offence under this Act. Any person concerned shall provide suitable convenience for the operation of the officials.”
In other words, Thai criminal law penalizes any copyright violation even though these violations do not carry with them commercial purpose. The scope of criminal copyright law becomes exceedingly broad. We will see below, that Thailand has equally broad fair use provisions. However, the burden of excessive criminalization cannot be properly balanced by broad fair use doctrine. The powers of the police become too oppressive and intruding private life of the individuals.
AMERICAN AND THAI INTERNET COPYRIGHT LAWS: COMPARISON
In order to understand the role of criminal law in the protection of the internet copyrights, one has to understand the overall structure of Internet copyrights laws. Thai law, not surprisingly, is influenced by the U.S. Law which moves around two poles. The first pole is introduction of penalties for circumvention of digital copyright protection mechanisms. The second pole is about excluding or limiting liability of the Internet Service Providers. The U.S. was one of the first to implement the provisions of the Internet Treaties by enacting Digital Millennium Copyright Act (DMCA) in 1998.13 It follows the Internet Treaties in making it illegal to circumvent digital copyright protection measures. In many respects, the scope of American law is much larger than the one of the Internet treaties.
Internet treaties do not address the issue of liability of internet service providers. The problem with the ISPs is that they serve as conduits of communication between different Internet users who can send illegally the copies of protected literary and artistic works. The Internet transmission of the files involves their temporary copying by the ISPs. Further, ISPs mirror certain popular websites on their servers in order to reduce the time it takes for users to download their sites. The issue arises whether ISPs violate copyright law by linking the Internet users to another website containing copyright infringing materials. The same applies to any website which contains links to the copyright infringing materials situated somewhere else on the Internet.
Because of the failure of digital locks approach to secure the interests of copyright owners, there is a growing pressure on the legislators in the Western countries to impose on the ISPs filtering and content monitoring obligations within their networks. “ISPs would then become private network police, actively monitoring for content that might infringe copyright and stopping it from reaching subscribers’ computers.”14 Imposition of such duty faces a strong opposition on the same ground as in cases of pornography and defamation: consumer rights, free speech, and personal privacy.
The US law makes it clear that an ISP will be liable for copyright violation only if it was aware that the material on the connected website was infringing someone’s copyright.15 Further, ISPs can create intermediate and temporary copies as part of an “automatic technical process” when rooting or transmitting communications among Internet users. DMCA expressly exempts from infringement liability temporary copies created in connection with the maintenance and repair of computer systems, but only if these copies are destroyed after the maintenance and repair completed.
In 2015, Thai law has addressed Internet issues in its copyright legislation. Even though Thailand has not yet ratified Internet treaties, it has recently enacted amendments to copyright law which are similar to the U.S. copyright law. New Thai legislation contains identical to U.S. law provisions related to creating intermediate or temporal copies by ISP in the process of transmitting digital materials. Such copies are deemed as not violating copyrights.16 Further, the ISP is not liable for the copyright infringements if it does not control, initiate, or order the material to be carried out in the computer system. The owners of copyright have a right to request courts to issue injunctions against the ISP to prevent the distribution of copyright-infringing material. By obeying the court’s injunction, it is also exempt from any liability for any possible damage resulted from such compliance.17
The most significant part of the Internet treaties deals with “anti-circumvention” (referred to as Technological Protection Measures TPM) and “rights management information”. It requires that the states “should provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” such as digital locks.18 It also requires the states to “provide adequate legal protection and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention: (i) to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.”19
American law enforced those provisions in its Digital Millennium Copyright Act.20 Thai law follows in its main provisions the American law, even though Thailand has not been a party to the Internet treaties at the time of enacting its new copyright legislation. Like American law, new Thai law imposes both civil and criminal law penalties for modification of RMI and removal of TPM.21 The civil liability for these new offences is determined according to the old copyright law: “the court may order the infringer to compensate the owner of copyright or performers' rights for damages the amount of which shall be determined by the court taking into account the seriousness of the injury, including the loss of profits and the expenses necessary for the enforcement of the right of the owner of copyright or performers' rights.”22 However, new Copyright Act allows Thai courts to impose American idea of punitive damages on a copyright infringer by increasing the compensation up to two times of what would be imposed according to the old law.23
There is, however, a significant difference between American and Thai laws in the way of criminalizing modification of RMI and removal of TPM. American law imposes criminal law penalties only in cases when the acts were committed “willfully and for purposes of commercial advantage or private financial gain.”24 In contrast, Thai copyright law imposes criminal law penalties for modification of RMI and removal of TPM even when it was done without any commercial purposes. It follows a similar practice of old Thai copyright law which imposes fines from 10,000 to 100,000 baht on “non-commercial” offenders.25 If the offense is committed for commercial purpose, the offender can be subject to imprisonment of between three months and two years or/and a fine of between 50,000 baht and 400,000 baht.26
When comparing Thai Internet criminal copyright law to American law, one can see significant similarities. However, Thai law stretches beyond commercial offences in criminalizing circumvention of technological protection and removal of rights control mechanisms. This latter fact makes Thai law appear as more authoritarian and oppressive, relying more on the police power to protect the profits of copyright owners. However, a more extensive application of fair use and not rigid enforcement of criminal law in copyright cases make this first impression inadequate.
INTERNET CHALLENGES FOR CRIMINAL COPYRIGHT LAW
Criminal copyright laws which govern the Internet IP aspects are different from country to country. The Internet is, at the same time, international. It is true that there are several international conventions which impose a minimum standard of copyright protection. However, national law of a particular country which has adopted those conventions can still enforce a higher level of protection. The U.S. copyright law as well as copyright laws of many rich countries recently extended the term of copyright protection of literary works up to seventy years from the death of the author.27 In contrast, Thai law enforces a general and minimum period according to the Berne Convention that lasts the life of the author and fifty years after his or her death.28 Fifty years of protection are granted to cinematographic works since their creation, and twenty five years to photographic works. Thai law provisions related to the works which fall outside copyright protection because of the subject matter or its author may also differ from other countries.29 Therefore, what can be considered a criminal activity in the U.S., can be a lawful activity in Thailand. The Internet allows viewing the same materials regardless the differences in copyright protection.